HomeMy WebLinkAbout97- Senic Developers Inc Annexation Agreement
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SCENIC DEVELOPERS. INC.
ANNEXATION AGREEMENT
THIS AGREEMENT is made and entered into this 1st day of
December
19J.L, by and between the CITY OF BOZEMAN, a municipal corporation and political
subdivision of the State of Montana, with offices at 411 East Main Street, Bozeman, Montana
59771-0640, hereinafter referred to as "City", and Scenic Developers, Inc., a Corporation, 205A
S, 20th Avenue, Bozeman MT 59715 hereinafter referred to as "Landowner",
WITNESSETH:
WHEREAS, Landowner is owner in fee of a tract of certain real property, hereinafter
referred to as the "SCENIC DEVELOPERS, INC, ANNEXATION", situated in Gallatin County,
Montana, and more particularly described as follows:
Tracts of land located in the SE y.. , Section 14, T2S, R.5E, P ,M.M, and having
composite boundaries defined as; commencing at the Southeast comer of Section
14; thence westerly 270!l 41' 17" assumed azimuth from the north, 69.20 feet
along the south line of thc Southeast Quarter of said Section 14; thence northerly
0002 31' 23" azimuth 1 00 1.82 feet along the westerly right of way line of South
19th Avenue; thence northerly 0002 30' 13" azimuth 281.37 feet to the point of
beginning of the property to be descnbed; thence westerly 2702 20' 34" azimuth
170.18 fcct; thence northerly 0002 19' 25" azimuth 45 feet; thence westerly 2702
20' 34" azimuth 1016.36 feet; thence northerly 0082 38' 16" azimuth 1032.74 feet;
thcnce easterly 0892 59' 48" azimuth 418.24 feet; thence southerly 1802 08" 24"
azimuth 306,79 feet along the west line of parcel A, Certificate of Survey 1328A,
according to the recorded plat thereof; thence easterly 0902 00' 00" azimuth 99,96
feet along the south line of said parcel A; thence southerly 1802 04' 03" azimuth
29.94 feet along said south line; thence easterly 0902 00' 00" azimuth 520.56 feet
along said south line; thence southerly 180233' 57" azimuth 317,83 feet along the
west Right of Way line of South 19th Avenue; thence southerly 1802 30' 13"
azimuth 418,63 feet; to the point of beginning, Also known as Lot lA of Minor
Subdivision No, 191A.
WHEREAS, the Landowner has petitioned the City for aIll1exation of the contiguous
tract; and
WHEREAS, the SCENIC DEVELOPERS, INC, ANNEXATION is not within the
corporate limits of the City or other municipality but is contiguous to the City and may therefore
be annexed to the City in accordance with the provisions of this Agreement and M, C,A. Title 7,
Chapter 2, Part 43,
WHEREAS, all parties recognize that the annexation of the SCENIC DEVELOPERS,
INC. ANNEXATION pursuant to Section 7-2-4301, et seq., M.C.A., will entitle the said
property to City services, including municipal water and sewer senrice, upon their availability; and
WHEREAS, M,C.A. Section 7-2-4305 provides that a municipality and landowner can
SCENIC DEVELOPERS. Inc, ANNEXATION AGREEMENT
Page 1
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FtlH 1 'fS PACt212?
agree to the provision of services to the area to be annexed~ and
WHEREAS, the City's present water supply is insufficient to enable it to supply
reasonably adequate water service to additional customers outside the present city boundaries~
and
WHEREAS, the Landowner wishes to convey to the City certain water rights or take
some equivalent action to provide water and sewer service to the SCENIC DEVELOPERS, INC.
ANNEXATION~ and
WHEREAS, all parties recognize that the development of the SCENIC DEVELOPERS,
INC, ANNEXATION will impact Kagy Boulevard and South 19th Avenue, and will require
additional public street improvements for traffic circulation~ and
WHEREAS, the Landowner finds that this Agreement will provide for the most
satisfactory and dependable water supply or service available to furnish water and provide traffic
circulation for development near and within the SCENIC DEVELOPERS, INC. ANNEXATION~
and
WHEREAS, the making and performance of this Agreement is desirable to promote the
development of the most adequate water supply and traffic circulation pattern for the City as it
now exists and as it is reasonably expected to enlarge~ and
WHEREAS, the securing of an adequate water supply and traffic system by the City is
necessary and of mutual advantage to the parties hereto~ and
WHEREAS, the parties have determined that it is in the best interests of the City and the
Landowner, and in furtherance of the public health, safety and welfare of the community to enter
into and implement this Agreement.
IN CONSIDERATION of the mutual covenants and agreements herein contained, the
parties hereto agree as follows:
1. Recitals.
The above recitals are true and correct.
2. Annexation.
The Landowner filed an application for annexation of the SCENIC DEVELOPERS, INC.
ANNEXATION with the City, The City, on January 6, 1997, adopted a Resolution of Intent to
Annex the SCENIC DEVELOPERS, INC. ANNEXATION, By execution of this Agreement,
SCENIC DEVELOPERS, Inc, ANNEXATION AGREEMENT
Page 2
Hi M 179 PAC~2128
the City has manifested its intention to annex the SCENIC DEVELOPERS, INC,
ANNEXATION tract pursuant to the tenns and conditions of this Agreement. Subject to the
provisions of Title 7, Chapter 2, Part 43, the City shall, upon execution of this Agreement, adopt
a Resolution of Annexation of the SCENIC DEVELOPERS, INC. ANNEXATION to the City,
Further, upon the execution of this Agreement, the Landowner shall do all things necessary and
proper to aid and assist the City in carrying out the tenns, conditions and provisions of this
Agreement and effectuate the annexation of the SCENIC DEVELOPERS, INC. ANNEXATION
tract to the City.
3, Services Provided.
The City will, upon annexation, make available only existing City services to the extent
currently available, including municipal water service, municipal sewer service, police protection,
and fire protection, to the SCENIC DEVELOPERS, INC. ANNEXATION, as provided in this
Agreement.
4. Municipal Water Service Defined.
The term "municipal water service" as is used in this Agreement shall be the service which
is supplied by the City in accordance with Chapter 13.12, Bozeman Municipal Code, or as may be
amended, as well as any other tenns and conditions which apply to the City's provision of this
service, The term does not contemplate the extension of lines or construction of necessary
improvements at any cost to the City for delivery of water to and within the SCENIC
DEVELOPERS, INe. ANNEXATION, Nothing in this Agreement shall obligate the City to pay
for right-of-way acquisition, engineering, construction, and other costs for the delivery of water
to or within the SCENIC DEVELOPERS, INC, ANNEXATION to include, but not limited to,
any impact fees, hook-up, connection, or development charges which may be established by the
City.
5. Municipal Sewer Service Defined.
The term "municipal sewer service" as is used in this Agreement shall be the service which
is supplied by the City in accordance with Chapter 13.24, Bozeman Municipal Code, or as may be
amended, as well as any other terms and conditions which apply to the City's provision of this
service. The term does not contemplate the extension of lines or construction of necessary
improvements at any cost to the City for collection of sewage at and within the SCENIC
DEVELOPERS, INC, ANNEXATION. Nothing in this Agreement shall obligate the City to pay
SCENIC DEVELOPERS, Inc. ANNEXATION AGREEMENT
Page 3
UlM 1 19 P~C~2129
for right-of-way acquisition, engineering, construction, and other costs for the collection of
sewage services to or within the SCENIC DEVELOPERS, INe. ANNEXATION to include, but
not limited to, any impact fees, hookup, connection, or development charges which may be
established by the City.
6. Water Riehts.
The parties acknowledge the following City policy:
Prior to annexation of property, it shall be the policy of the City of Bozeman to
acquire usable water rights, or an appropriate fee in lieu thereof, equal to the
anticipated average annual consumption of water by residents and/or users of the
property when fully developed, The fee may be used to acquire water rights or for
improvements to the water system which would create additional water supply
capacity. Except, however, that for any annexation in excess often (10) acres, this
policy shall be carried out prior to final plat approval of each development phase.
Section 2, No.5, Commission Resolution 3137, Adopted August 19, 1996
The SCENIC DEVELOPERS, INC. ANNEXATION consists of approximately 21,664
acres,
The Landowner understands and agrees that they must provide sufficient water rights in
accordance with the City's policy according to the following schedule:
SCENIC DEVELOPERS, INC. ANNEXATION, consisting of a
total of 21. 664 acres, prior to filing of any final subdivision plat,
final site plan approval, or the issuance of any building permit,
whichever occurs first
The Landowner shall provide sufficient water rights or cash-in-lieu as calculated by the
City in accordance with its policy at the time of calculation, The Landowner further understands
that the City will calculate the average annual diversion requirement necessary to provide water to
this annexation tract on the basis of the zoning designation and/or City-approved development for
the property at the time such calculation is made,
The Landowner agrees to provide sufficient water rights or cash-in-lieu of water rights
prior to filing of any Final Subdivision Plat, Final Site Plan approval, or the issuance of any
building permit, whichever occurs first.
7. ImDact Fees
Landowner shall pay to the City Fire and Street Impact Fees for the existing structurc(s)
within the SCENIC DEVELOPERS, INC. ANNEXATION prior to or at the time of
Landowner's execution of this Agreement. At the time the existing and/or new structures apply
for connection to the City's Water and Sewer facilities, the Landowner shall pay all Water and
Sewer Impact Fees which are due, Landowner further understands and agrees that any
SCENIC DEVELOPERS.lnc, ANNEXATION AGREEMENT
Page 4
Hl N 1 '('9 P~C~'21JO
improvements, either on- or off-site, necessary to provide connection of the SCENIC
DEVELOPERS, INC. ANNEXATION to municipal services which are wholly attnbutable to the
property are "project related improvements" as defined in the Impact Fee Ordinance, and as such,
are not eligible for impact fee credits.
8. Waiver of Rieht-to-Protest 8necial Imnrovement Districts
Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for maintenance of any parks within the annexed area and/or of a City-wide Park
Maintenance District, which would provide a mechanism for the fair and equitable assessment of
maintenance costs for such parks, and for street improvements, including paving, curb/gutter,
sidewalk, boulevard and storm drainage appurtenances to: a) Kagy Boulevard and b) South 19th
Avenue; and for signalization improvements at the intersections of Kagy Boulevard and South
19th Avenue, Said Waiver are attached hereto as Exhibit A.
9. Rieht-of-Wav/Easement for Future Roadwavs.
Landowner has dedicated, by written easement, the following land to the City of Bozeman
for right-of-way purposes, which represent Landowner's proportionate share of the necessary
right-of-way. Said easements will be filed with the Gallatin County Clerk and Recorder at the
time this Annexation Agreement is filed,
a) 90 feet for Kagy Boulevard across the Landowners property,
b) 45 feet for Kagy Boulevard along the southern property line of the Landowners
property ,
10. Utility Easements.
Landowner understands and agrees that utility easements, a minimum of 30 feet in width,
will be necessary for the installation and maintenance of water and sewer utility services to the
annexed parcel. The Landowner shall create such easements in locations agreeable to the City
during the appropriate development procedure, but in no event later than the filing of any final
plat or site plan or issuance of a building permit on any of the parcels.
11. Additional Terms of Waivers.
The parties recognize that these documents shall be filed and of record with the Gallatin
County Clerk and Recorder prior to the sale of any land within the SCENIC DEVELOPERS,
INC, ANNEXATION, The parties further agree that the City may file these documents at any
time.
SCENIC DEVELOPERS, Inc, ANNEXATION AGREEMENT
Page 5
12. Governine Law and Venue.
This Agreement shall be construed under and governed by the laws of the state of
ftHt 11'9 PACr2131
Montana, In the event of litigation concerning this Agreement, venue is in the Eighteenth Judicial
District Court, Gallatin County, State of Montana.
13. Attorney's Fees.
In the event it becomes necessary for either party to this Agreement to retain an attorney
to enforce any of the tenns or conditions of this Agreement, then the prevailing party shall be
entitled to reasonable attorney's fees and costs, to include the salary and costs of in-house counsel
including City Attorney.
14. Waiver.
No waiver by either party of any breach of any term, covenant or agreement shall be
deemed a waiver of the same or any subsequent breach of this same or any other term, covenant
or agreement, No covenant, term or agreement shall be deemed waived by either party unless
waived in writing.
15. Invalid Provision,
The invalidity or unenforceability of any provision of this Agreement shall not affect the
other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
16. Modifications or Alterations.
No modification or amendment of this Agreement shall be valid unless evidenced by a
writing signed by the parties hereto.
17. No Asshmment,
It is expressly agreed that the Landowner shall not assign this Agreement in whole or in
part without prior written consent of the City.
18. Successors.
This Agreement shall be binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respective heirs, successors and assigns.
19, Covenants to Run with the Land.
The parties intend that the tenns of this Agreement shall be covenants running with the
land and shall not expire at their deaths or upon transfer of ownership of the property,
SCENIC DEVELOPERS, Inc. ANNEXATION AGREEMENT
Page 6
Hl H 1'9 PAC!2132
The undersigned Landowners affirms that they have authority to enter into this Agreement
on behalf of their partnership, and to bind the partnership to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
LANDOWNER- SCENIC DEVELOPERS, INC.
D.~ t#~
STATE OF/?~/X-U~u,~ )
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County of CiIU(t1-.(.(;,G )
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On this(3~'-J-'ft) day of 7hw-fJG-cUc , 19 'i 7 . before me, a Notary Public for the
State of;:J1ul}(:c, personally appeared John Marks, known to me to the President of Scenic
Developers, Inc" the corporation that executed the foregoing Annexation Agreement, and
acknowledged to me that he/she executed the same for and on behalf of said corporation,
IN WITNESS WHEREO I have hereunto set my band and affixed my official seal as of
- the day ant:! year first above n,
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By: clhk JOMson, City Manager
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Clerk of the City Commission
STATE OF MONTANA )
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County of Gallatin )
On the /..ll day of ;( lr./ t'4/( .-tv I . 19 iL. before me, a Notary Public for the
State of Montana, personally' appeared CLARK JOHNSON AND ROBIN L. SULLIVAN,
known to me to be the City Manager and Clerk of the City Commission respectively, of the City
of Bozeman, whose names are subscribed to the within instrument and acknowledged to me that
they executed the same for and on behalf of said City.
filM 179 PACE2133
EXHIBIT "A"
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
SCENIC DEVELOPERS. INC. ANNEXATION
The undersigned owner of the real property situated in the County of Gallatin, State of
Montana, and more particularly described as follows:
Tracts ofland located in the SE Y4 , Section 14, T2S, R.5E, P,M.M. and having
composite boundaries defined as; commencing at the Southeast corner of Section
14; thence westerly 2702 41' 17" assumed azimuth from the north, 69,20 feet
along the south line of the Southeast Quarter of said Section 14; thence northerly
0002 31' 23" azimuth 1001.82 feet along the westerly right of way line of South
19th Avenue; thence northerly 0002 30' 13" azimuth 281.37 feet to the point of
beginning of the property to be described; thence westerly 2702 20' 34" azimuth
170.18 feet; thence northerly 0002 19' 25" azimuth 45 feet; thence westerly 2702
20' 34" azimuth 1016.36 feet; thence northerly 008238' 16" azimuth 1032,74 feet;
thence easterly 0892 59' 48" azimuth 418,24 feet; thence southerly 180Q 08" 24"
azimuth 306,79 feet along the west line of parcel A, Certificate of Survey 1328A,
according to the recorded plat thereot; thence easterly 0902 00' 00" azimuth 99.96
feet along the south line of said parcel A; thence southerly 1802 04' 03" azimuth
29,94 feet along said south line; thence easterly 0902 00' 00" azimuth 520.56 feet
along said south line; thence southerly 180233' 57" azimuth 317,83 feet along the
west Right of Way line of South 19th Avenue; thence southerly 1802 30' 13"
azimuth 418.63 feet; to the point of beginning,
IN CONSIDERATION ofreceiving approval for annexation of the subject property from
the City of Bozeman, along with accompanying rights and privileges and for other and valuable
consideration, the receipt of which is hereby acknowledged, and in recognition of the impact to
Kagy Boulevard and South 19'h Avenue and the intersections of Kagy Boulevard and South 19th
Avenue which will be caused by the development of the above-described property, the owner has
waived and do hereby waive for itself, its successors and assigns, the right to protest the creation
of one or more special improvement districts for 1) a Special Improvement Maintenance District
SCENIC DEVELOPERS, Inc, ANNEXATION AGREEMENT
Page 8
for the maintenance of any parks within the annexed area or of a City-wide Park Maintenance
District; and 2) street improvements, including paving, curb, gutter, sidewalk, and drainage
improvements to a) Kagy Boulevard; b) South 19th Avenue; and for signalization improvements
to the intersections of Kagy Boulevard and South 19'h Avenue or to make any written protest
against the size or area or creation of the district be assessed in response to a duly passed
resolution of intention to create one or more special improvement districts which would include
the above-described property.
This waiver shall be a covenant running with the land and shall not expire with the
dissolution of the limited partnership, provided however this waiver shall apply to the lands herein
described,
..
fILM 179 PAC!2134
The terms, covenants and provisions of the Waiver shall extend to, and be binding upon
the successors-in-interest and assigns of the parties hereto,
DATED this 24 f-~ay of 1\)0 u eM b~ . 19 cf~..
Landowner- Scenic Developers, Inc.
STATE OF d10()~ )
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County of ~ )
On this d,4ili day of yJj}./W;?J(/~ . 19!1L before me, a Notary Public for the
State of (6\\ , personally appeared John Marks, known to me to the President of Scenic
Developers, Inc" the corporation that executed the foregoing Annexation Agreement, and
acknowledged to me that he/she executed the same for and on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of
the day and year ftrst above written.
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CITY OF BOZEMAN
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By: CI~k Johnson, City Manager
SCENIC DEVELOPERS, Inc. ANNEXATION AGREEMENT
Page 9
OVER
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Clerk of the City Commission
STATEOFMONTANA )
:ss
County of Gallatin )
On the /./.t day of .iA,tLfd.dlC_ , 191L, before me, a Notary Public for the
State of Montana, personally appeared CLARK JOHNSON AND ROBIN L. SULLIVAN,
known to me to be the City Manager and Clerk of the City Commission respectively, of the City
of Bozeman, whose names are subscribed to the within instrument and acknowledged to me that
they executed the same for and on behalf of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day
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3553ti[j
State of MOAt., County (If t1al/crtill ss Filed for reoord DECEMBE~~ I 19-2L,.
at 2: 32 P, M., and reGOrdAd i. Book -1l2 e! MISCELLANEOUS page 2126
&-110iJ.- ~ Record.... 1lr~.YU tC f\n f\Illl II t - Deputy
FEE; $60.00
RT: ROBIN SULLIVAN CITY OF BOZEMAN
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